Ninth Circuit Pumps the Brakes on Facebook Biometric Trial
The Ninth Circuit has granted an emergency motion by Facebook Inc. in its bid to defeat a privacy class action over biometric data.
May 29, 2018 at 03:51 PM
2 minute read
The original version of this story was published on The Recorder
Facebook Inc. headquarters. (Photo: Jason Doiy/ALM)
SAN FRANCISCO — The U.S. Court of Appeals for the Ninth Circuit has put the brakes on a class action privacy lawsuit against Facebook Inc. that had been set to go to trial in July.
In an order signed by Ninth Circuit Judges William Fletcher and Consuelo Callahan Tuesday, the court granted an emergency motion for interlocutory review of an April class certification ruling. That ruling certified a class of Illinois Facebook users bringing claims under the state's Biometric Information Privacy Act (BIPA) over Facebook's photo scanning technology.
The judge presiding over the case is U.S. District Judge James Donato of the Northern District of California. Lawyers for Facebook at Mayer Brown had asked Donato to delay the trial, set to begin July 9, so they could seek Ninth Circuit review. But Donato earlier on Tuesday refused that request.
In the underlying lawsuit, plaintiffs claim Facebook's “tag suggestions” feature, a tool launched in 2011 that prompts users with possible matches of friends to identify in uploaded pictures BIPA requires companies to get permission before storing personal identifiers like fingerprints and face and retina scans and disclose how they use them.
The law carries statutory damages of $1,000 for each negligent violation, and $5,000 for those that are “intentional and reckless,” meaning that a verdict against Facebook could hit the company with billions in damages. Facebook had the backing of the U.S. Chamber of Commerce in seeking interlocutory review.
Plaintiffs are represented in the case by Robbins Geller Rudman & Dowd and Labaton Sucharow. Paul Gelller of Robbins Geller Rudman & Dowd said in an email statement that while he was looking forward to trial in July, he was still confident that his clients would get their day in court. “This is just one more hurdle we have to clear,” he said.
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